Thanks for everyone’s insights. To elaborate, the procedure employed was effectively a substitution. At the pretrial conference, the contractor announced in open court that, having just learned at the pre-trial attorneys’ conference that the tenant had been evicted and that a new tenant (an affiliate of the landlord no less) was in possession, the contractor intended to amend the complaint to “substitute” the new tenant for the old, to which neither tenant’s counsel nor the court voiced any objection.
Reese, I’ve encountered that converse situation you speak of, where a client is sued to foreclose, but the client has no interest in the property (due to a satisfaction of lien, or whatever). So, if the client does not appear, and a default and default judgment of foreclosure is taken against him, is the plaintiff the prevailing party as to the client? And if the client appears, answers, and disavows any interest, and is thereafter dropped as a party, is the client the prevailing party? The way I see it, the risks of keeping a party in a foreclosure case who has no (or no longer has any) interest in the property being foreclosed are potentially as great as substituting them.
It is bizarre to me that this precise situation has (apparently) not come up many times before.
Bryan
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@rommlaw.com
Sent: Friday, February 17, 2012 10:16 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question
Bryan: I don't mean to be critical here, but I would have only "added" the new tenants as additional defendants. You substituted the new tenants for the old only because of the eviction...what if the eviction were defective? Or what if there was an unknown agreement between Landlord and those Tenants? Later you can always insist on a stip releasing the old tenants and have them sign off agreeing to waive fees and costs....
but in answer to your specific question:
Older cases like Pena say No fees awarded:
Pena-Alum Glass & Mirror v. Nationwide Terminals, Inc., 864 So.2d 461 (Fla. 3d DCA, 2003)
But the 4th DCA awarded fees in:
Boca Airport v. Roll-N-Roaster, 690 So2d 640 (Fla. 4th DCA, 1997).
But the Boca Airport case I think is now superseded by the Trytek case, I would not award fees if I were the Judge, because no prevailing party on significant issues under
Trytek v. Gale Indus., 997 So. 2d 365; (Fla. 2008)
Thoughts anyone?
Michael Romm
Michael Romm
Michael R. Romm, P.A.
North Office: 1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020
South Office: 6505 Blue Lagoon Drive, Suite 460, Miami, FL 33126
Cell Phone: (954) 557-8002
Office Phone: (305) 260-1600
Fax #1: (954) 208-0022
Fax #2: (888) 622-3035
mromm@rommlaw.com mailto:mromm@rommlaw.com
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
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Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. Law Offices of Michael R. Romm, P.A.
-------- Original Message --------
Subject: [RPPTL-constructionlaw] Fees Question
From: "Bryan L. Capps" <blc@kirwinnorris.com <mailto:blc@kirwinnorris.com> >
Date: Fri, February 17, 2012 9:22 am
To: <constructionlaw@lists.flabarrpptl.org <mailto:constructionlaw@lists.flabarrpptl.org> >
(Hopefully) Quick/easy question for the brain trust:
Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.
My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?
I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.
http://www.kirwinnorris.com/
Bryan L. Capps
Partner | Florida Board Certified in Construction Law
Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com mailto:blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/
This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited. If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments. Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
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Thanks for everyone’s insights. To elaborate, the procedure employed was effectively a substitution. At the pretrial conference, the contractor announced in open court that, having just learned at the pre-trial attorneys’ conference that the tenant had been evicted and that a new tenant (an affiliate of the landlord no less) was in possession, the contractor intended to amend the complaint to “substitute” the new tenant for the old, to which neither tenant’s counsel nor the court voiced any objection.
Reese, I’ve encountered that converse situation you speak of, where a client is sued to foreclose, but the client has no interest in the property (due to a satisfaction of lien, or whatever). So, if the client does not appear, and a default and default judgment of foreclosure is taken against him, is the plaintiff the prevailing party as to the client? And if the client appears, answers, and disavows any interest, and is thereafter dropped as a party, is the client the prevailing party? The way I see it, the risks of keeping a party in a foreclosure case who has no (or no longer has any) interest in the property being foreclosed are potentially as great as substituting them.
It is bizarre to me that this precise situation has (apparently) not come up many times before.
Bryan
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@rommlaw.com
Sent: Friday, February 17, 2012 10:16 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question
Bryan: I don't mean to be critical here, but I would have only "added" the new tenants as additional defendants. You substituted the new tenants for the old only because of the eviction...what if the eviction were defective? Or what if there was an unknown agreement between Landlord and those Tenants? Later you can always insist on a stip releasing the old tenants and have them sign off agreeing to waive fees and costs....
but in answer to your specific question:
Older cases like Pena say No fees awarded:
Pena-Alum Glass & Mirror v. Nationwide Terminals, Inc., 864 So.2d 461 (Fla. 3d DCA, 2003)
But the 4th DCA awarded fees in:
Boca Airport v. Roll-N-Roaster, 690 So2d 640 (Fla. 4th DCA, 1997).
But the Boca Airport case I think is now superseded by the Trytek case, I would not award fees if I were the Judge, because no prevailing party on significant issues under
Trytek v. Gale Indus., 997 So. 2d 365; (Fla. 2008)
Thoughts anyone?
Michael Romm
Michael Romm
Michael R. Romm, P.A.
North Office: 1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020
South Office: 6505 Blue Lagoon Drive, Suite 460, Miami, FL 33126
Cell Phone: (954) 557-8002
Office Phone: (305) 260-1600
Fax #1: (954) 208-0022
Fax #2: (888) 622-3035
mromm@rommlaw.com <mailto:mromm@rommlaw.com>
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. Law Offices of Michael R. Romm, P.A.
-------- Original Message --------
Subject: [RPPTL-constructionlaw] Fees Question
From: "Bryan L. Capps" <blc@kirwinnorris.com <mailto:blc@kirwinnorris.com> >
Date: Fri, February 17, 2012 9:22 am
To: <constructionlaw@lists.flabarrpptl.org <mailto:constructionlaw@lists.flabarrpptl.org> >
(Hopefully) Quick/easy question for the brain trust:
Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.
My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?
I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.
<http://www.kirwinnorris.com/>
Bryan L. Capps
Partner | Florida Board Certified in Construction Law
Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com <mailto:blc@kirwinnorris.com>
www.kirwinnorris.com <http://www.kirwinnorris.com/>
This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited. If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments. Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
________________________________
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